187 A.3d 10 (Me. 2018), WCB-16-433, Bourgoin v. Twin Rivers Paper Co., LLC

Docket Nº:WCB-16-433
Citation:187 A.3d 10, 2018 ME 77
Opinion Judge:HJELM, J.
Attorney:Anne-Marie L. Storey, Esq. (orally), and John K. Hamer, Esq., Rudman Winchell, Bangor, for appellants Twin Rivers Paper Company, LLC, and Sedgwick Claims Management Services Norman G. Trask, Esq. (orally), Currier & Trask, P.A., Presque Isle, for appellee Gaetan H. Bourgoin Thomas E. Getchell, Es...
Judge Panel:Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ. JABAR, J., with whom ALEXANDER, J., joins, dissenting. ALEXANDER, J., dissenting.
Case Date:June 14, 2018
Court:Supreme Judicial Court of Maine

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187 A.3d 10 (Me. 2018)

2018 ME 77




No. WCB-16-433

Supreme Judicial Court of Maine

June 14, 2018

Argued: September 13, 2017

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[Copyrighted Material Omitted]

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Anne-Marie L. Storey, Esq. (orally), and John K. Hamer, Esq., Rudman Winchell, Bangor, for appellants Twin Rivers Paper Company, LLC, and Sedgwick Claims Management Services

Norman G. Trask, Esq. (orally), Currier & Trask, P.A., Presque Isle, for appellee Gaetan H. Bourgoin

Thomas E. Getchell, Esq., Troubh Heisler, Portland, for amicus curiae University of Maine System




[¶ 1] After sustaining a work-related injury, Gaetan H. Bourgoin was issued a certification to use medical marijuana as a result of chronic back pain. He successfully petitioned the Workers’ Compensation Board for an order requiring his former employer, Twin Rivers Paper Company, LLC, to pay for the medical marijuana. On this appeal from the decision of the Appellate Division affirming that award, we are called upon for the first time to consider the relationship between the federal Controlled Substances Act (CSA) and the Maine Medical Use of Marijuana Act (MMUMA). We conclude that in the narrow circumstances of this case— where an employer is subject to an order that would require it to subsidize an employee’s acquisition of medical marijuana— there is a positive conflict between federal and state law, and as a result, the CSA preempts the MMUMA as applied here. See 21 U.S.C.S. § 903 (LEXIS through Pub. L. No. 115-181). We therefore vacate the decision of the Appellate Division.1

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[¶ 2] Twin Rivers Paper Company, LLC, and Sedgwick Claims Management Services (collectively, Twin Rivers) appeal from a decision of the Workers’ Compensation Board Appellate Division affirming a hearing officer’s (Pelletier, HO )2 decree that ordered Twin Rivers to pay the cost of medical marijuana used by its employee, Gaetan H. Bourgoin.

[¶ 3] We draw the following facts, which are supported by the record, from the hearing officer’s decree. See Bailey v. City of Lewiston, 2017 ME 160, ¶ 2, 168 A.3d 762.

[¶ 4] Bourgoin worked as a paper machine laborer for Fraser Papers, which was subsequently acquired by Twin Rivers, at a paper mill in Madawaska from 1980 until 1989, when he sustained a work-related back injury. By agreement of the employer, Bourgoin was placed on total disability as a result of the injury. On three occasions, Twin Rivers filed a petition seeking a reduction in Bourgoin’s incapacity, but each petition was denied, and he remains on total disability.

[¶ 5] As a result of his workplace injury, Bourgoin suffers from severe chronic pain syndrome. Bourgoin consulted with a number of pain management specialists and attempted a variety of treatments, including opioid medications, for his pain. Due to adverse side effects of his continued use of opioids, and on the recommendation of his primary care physician, Bourgoin stopped using narcotic medications. In January of 2012, Bourgoin obtained a medical marijuana certification and since then has used medical marijuana to manage his chronic pain. See 22 M.R.S. § § 2421 to 2430-B (2017).

[¶ 6] In February of 2012, Bourgoin filed a "petition for payment of medical and related services" with the Workers’ Compensation Board seeking payment from Twin Rivers for the cost of the medical marijuana. Twin Rivers opposed the petition on the ground, among others, that an order requiring it to pay for Bourgoin’s medical marijuana is barred by the CSA even if his use of medical marijuana were permitted by the MMUMA. Following a hearing, the hearing officer granted Bourgoin’s petition in a written decision issued in March of 2015. Twin Rivers appealed to the Appellate Division, which affirmed the hearing officer’s decision in August of 2016. We then granted Twin Rivers’ petition for appellate review. See 39-A M.R.S. § 322 (2017); M.R. App. P. 23 (Tower 2016).3


[¶ 7] Twin Rivers argues that the Controlled Substances Act, 21 U.S.C.S. § § 801-904 (LEXIS through Pub. L. No. 115-181), preempts application of the MMUMA as a predicate for an order that would compel Twin Rivers to reimburse Bourgoin for the use of medical marijuana. Federal preemption is a question of law that we review de novo. Guardianship of Smith, 2011 ME 51, ¶ 10, 17 A.3d 136.

A. Preemption Principles

[¶ 8] The preemption analysis must begin with the Supremacy Clause of the United States Constitution, which "unambiguously provides that if there is any conflict between federal and state law, federal

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law shall prevail." Gonzales v. Raich, 545 U.S. 1, 29, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005); see U.S. Const. art. VI, cl. 2 ("This Constitution, and the Laws of the United States ... shall be the supreme Law of the Land."). There are two "cornerstones" that guide our preemption analysis: first, "the ultimate touchstone in every pre-emption case" is Congress’s purpose in enacting the federal law; and second, "in all pre-emption cases, and particularly in those in which Congress has legislated in a field which the States have traditionally occupied, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal [law] unless that was the clear and manifest purpose of Congress." Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (alterations omitted) (citations omitted) (quotation marks omitted). Implementation of these principles serves to retain the "constitutionally mandated balance of power" between state and federal government. Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (quotation marks omitted).

[¶ 9] Federal law can preempt state law in three ways: first, by express preemption, where Congress expressly states that federal law preempts the state law; second, by field preemption, where Congress explicitly or implicitly leaves "no room" for state law, or where federal law is "so dominant" that it "will be assumed to preclude enforcement" of the state law; and third, by conflict preemption, where the state law "actually conflicts with federal law."

Hillsborough Cty. v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) (citations omitted); see also Arizona v. United States, 567 U.S. 387, 398-400, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012); Guardianship of Smith, 2011 ME 51, ¶ 10, 17 A.3d 136. It is the third type of preemption— conflict preemption— that is at issue here.

[¶ 10] Conflict preemption arises in two circumstances. The first is where "compliance with both federal and state [law] is a physical impossibility," see Hillsborough Cty., 471 U.S. at 713, 105 S.Ct. 2371 (citations omitted) (quotation marks omitted), because federal and state law "irreconcilabl[y] conflict" with one another, see Barnett Bank, N.A. v. Nelson, 517 U.S. 25, 31, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996). Second, conflict preemption occurs where "state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hillsborough Cty., 471 U.S. at 713, 105 S.Ct. 2371 (quotation marks omitted); see also Arizona, 567 U.S. at 399, 132 S.Ct. 2492.

[¶ 11] Here, Congress expressly regulated the consequence of any conflict that arises between the CSA and state law by including the following provision in the CSA: No provision of this title shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this title and that State law so that the two cannot consistently stand together.

21 U.S.C.S. § 903 (emphasis added). Through this statutory provision, Congress has eliminated field preemption— but it has preserved the supremacy of the CSA where its provisions conflict with state law in a way that makes compliance with the requirements of both impossible.

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See Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995); Robards v. Cotton Mill Assocs., 677 A.2d 540, 544 (Me. 1996). In this way, Congress has specified that the principles of conflict preemption are to be invoked to determine if state laws must yield to the CSA. Consequently, when framed in terms of the conflict preemption rubric, the dispositive question presented here is whether Twin Rivers is necessarily in violation of the CSA if it were to comply with the Board’s order to pay for the medical marijuana that Bourgoin is authorized to use pursuant to the MMUMA.

B. The Controlled Substances Act

[¶ 12] Nearly half a century ago, the United States Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 (LEXIS). Subchapter I of the Act, which was Title II in the original legislation, constitutes the Controlled Substances Act, 21 U.S.C.S. § § 801-904, which establishes laws pertinent to drug control and enforcement. See Pub. L. No. 91-513, § § 100-709, 84 Stat. 1236, 1242-1284. The United States Supreme Court has characterized the CSA as "a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA." Raich, 545 U.S. at 13, 125 S.Ct. 2195; see also 21 U.S.C.S. § 801(1)-(6) (establishing Congressional "findings and declarations" regarding controlled...

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